Estate of Davis ex rel. Davis v. U.S.

Decision Date15 October 2004
Docket NumberNo. CIV.A. 02-11911-RCL.,CIV.A. 02-11911-RCL.
Citation340 F.Supp.2d 79
PartiesThe ESTATE of Debra DAVIS, by Olga DAVIS, in her capacity as Administratrix of the Estate of Debra Davis, Plaintiff, v. The UNITED STATES of America, et al., Defendants.
CourtU.S. District Court — District of Massachusetts

Paul J. Griffin, Christopher M. Sheehan, Milton, MA, Robert S. Sinsheimer, Susan E. Sivacek, Sinsheimer & Associates, Boston, MA, for Plaintiffs.

Stacey Bosshardt, U.S. Department of Justice, Torts Branch, Civil Division, Washington, DC, William A. Brown, Boston, MA, Katherine A. Carey, Torts Branch, Civil Division, U.S. Department of Justice, Washington, DC, Catherine J. Finnegan, U.S. Department of Justice, Washington, DC, Margaret Krawiec, U.S. Department of Justice, Torts Branch, Civil Division, Washington, DC, Edward J. Lonergan, Boston, MA, A. Douglas Matthews, Fall River, MA, E. Peter Mullane, Mullane, Michel & McInnes, Cambridge, MA, E. Peter Parker, One Commercial Wharf North, Boston, MA, Peter Schlossman, U.S. Department of Justice, Torts Branch, Civil Division, Washington, DC, Tory A. Weigand, Morrison, Mahoney & Miller, LLP, Springfield, MA, for Defendants.

Dean A. Mazzone, Attorney General's Office, Boston, MA, for Attorney General of Massachusetts, District Attorneys for the Suffolk, Norfolk, and Middlesex Districts of Massachusetts, Interested Partys.


LINDSAY, District Judge.


This action arises out of the circumstances surrounding the death of Debra Davis ("Davis") in September 1981, allegedly at the hands of Stephen J. Flemmi and James J. Bulger. At the time of Davis's death, Flemmi and Bulger were "top echelon" informants for the Federal Bureau of Investigation (the "FBI") and alleged leaders of the Boston area's Winter Hill Gang, an association of individuals engaged in criminal activities. In counts I through VI of her amended complaint, Olga Davis (the "plaintiff"), adminstratrix of the Estate of Debra Davis (the "Estate"), claims, inter alia, that the United States (sometimes hereinafter referred to as the "government") and others wrongfully caused Davis's death by permitting Flemmi and Bulger to commit criminal activities with impunity, including murdering Davis and others.

The claims against the government purport to have been brought pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346, 2401, 2671, et seq. The plaintiff, in substance, asserts that the government failed in its duty to warn and protect Davis from wrongful acts committed against her by the government's informants, Flemmi and Bulger. Tort claims for damages against the United States may be maintained only to the extent that sovereign immunity is waived by the FTCA. Wood v. United States, 290 F.3d 29, 35 (1st Cir.2002). Subject to certain requirements, the FTCA permits civil actions against the government for injuries caused by the wrongful conduct of any employee of the government, acting within the scope of his or her employment, under circumstances in which a private person would be liable to the claimant. 28 U.S.C. § 1346(b). The government has moved under Fed.R.Civ.P. 12(b)(1) to dismiss all of the claims against it, arguing that the court lacks subject matter jurisdiction over the claims because (1) the plaintiff failed to present her administrative claim to the appropriate federal agency within two years of the accrual of that claim; (2) the conduct upon which the claims are based was committed by FBI agents acting outside of the scope of their employment; (3) the alleged failure of the United States to warn or protect Davis is not actionable under state law; and (4) the alleged failure to warn or protect Davis falls within the discretionary function exception of the FTCA.

On March 31, 2004, I entered an electronic order denying the motion of the United States to dismiss. This memorandum sets forth the reasons for that ruling.


Except for the allegations specifically mentioning Davis, most of the allegations in the lengthy amended complaint were drawn from the findings of fact in United States v. Salemme, 91 F.Supp.2d 141 (D.Mass.1999) (Wolf, J.), rev'd in part on other grounds by United States v. Flemmi, 225 F.3d 78 (1st Cir.2000), cert. denied, 531 U.S. 1170, 121 S.Ct. 1137, 148 L.Ed.2d 1002 (2001). In brief, the amended complaint alleges that in the late 1970's, the FBI recruited Flemmi and Bulger as "top echelon" informants to investigate, arrest, and prosecute members of La Cosa Nostra ("LCN," sometimes known as the "Mafia"), a criminal organization that was a rival to the Winter Hill Gang. The FBI allegedly agreed that, in exchange for the information Flemmi and Bulger provided, the FBI would protect the gangsters from prosecution for their criminal activities. In fulfillment of this promise, the FBI not only failed to take action when it discovered that Flemmi and Bulger were committing crimes, including murder, but the FBI also allegedly helped Flemmi and Bulger evade investigation and prosecution by other law enforcement agencies. This protection was accomplished through the conduct of FBI agent John J. Connolly, Jr., the "handler" of Flemmi and Bulger, as well as through John Morris, Connolly's immediate supervisor, and other supervisory agents. The plaintiffs allege that the protection afforded Flemmi and Bulger by FBI agents allowed the two criminals to kill Davis in 1981, without fear of prosecution, after the twenty-six year old Davis had announced to Flemmi that she wanted to end their relationship of approximately nine years. In or about October 2000, a former member of the Winter Hill Gang disclosed the location of Davis's remains to law enforcement officers.

In considering the government's motion to dismiss for lack of subject matter jurisdiction, I may "accept[ ] the plaintiff's version of jurisdictionally-significant facts as true" and "assess whether the plaintiff has propounded an adequate basis for subject matter jurisdiction." Valentin v. Hospital Bella Vista, 254 F.3d 358, 363 (1st Cir.2001). In performing this analysis, I must "credit the plaintiff's well-pleaded factual allegations (usually taken from the complaint, but sometimes augmented by an explanatory affidavit or other repository of uncontested facts), draw all reasonable inferences from them in her favor, and dispose of the challenge [to subject matter jurisdiction] accordingly." This approach to resolving the jurisdiction question is called the sufficiency challenge. Id. at 363. On the other hand, "the plaintiff's jurisdictional averments are entitled to no presumptive weight" where a party challenges subject matter jurisdiction "by controverting the accuracy (rather than the sufficiency) of the jurisdictional facts asserted by the plaintiff and proffering materials of evidentiary quality in support of that position." Id. In those circumstances, "the court must address the merits of the jurisdictional claim by resolving the factual disputes between the parties." Id. When the genuinely disputed jurisdictional facts are "inextricably intertwined with the merits of the case," I may "defer resolution of the jurisdictional issue until the time of trial." This approach is called the factual challenge. Id.

In considering the present motion, I have employed the "sufficiency challenge" approach. In its motion to dismiss, the government has not controverted the factual allegations of the plaintiff. Moreover, the disputed facts relevant to subject matter jurisdiction are too numerous and, for the most part, too "inextricably intertwined with the merits of the case," to make a "factual challenge" to subject matter jurisdiction practicable.

A. Timely Presentation of Administrative Claim

The FTCA requires that prior to filing suit, the plaintiff must present an administrative claim to the relevant federal agency (here, the FBI) within two years of the date the claim accrued. 28 U.S.C. § 2401(b). Where a claim does not meet this requirement, the court does not have jurisdiction to entertain the claim and must dismiss it. Skwira v. United States, 344 F.3d 64, 71 (1st Cir.2003), cert. denied, ___ U.S. ___, 124 S.Ct. 2836, 159 L.Ed.2d 267 (2004). The United States asserts that the plaintiff's claims against the United States accrued more than two years before she presented her administrative claim to the government on September 17, 2001. The plaintiff argues that her claim could not have accrued prior to October 2000, when Davis's remains were discovered.

I have addressed the law pertaining to the accrual of actions under the FTCA in some detail in cases raising claims similar to those raised in this case. See Donahue v. Federal Bureau of Investigation, 204 F.Supp.2d 169 (D.Mass.2002); Bennett ex rel. Estate of Bennett v. Federal Bureau of Investigation, 278 F.Supp.2d 104 (D.Mass.2003); Wheeler v. United States, C.A. No. 02-10464-RCL (D.Mass. Mar. 31, 2003), aff'd by McIntyre v. United States, 367 F.3d 38 (1st Cir.2004); Callahan v. United States, 337 F.Supp.2d 348 (D.Mass.2004); and Barrett v. United States, 337 F.Supp.2d 370 (D.Mass.2004). In these cases, I concluded that, in the First Circuit, which applies a discovery rule with respect to the application of the statute of limitations in actions brought pursuant to the FTCA, "a claim accrues when the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the factual basis for the cause of action." Gonzalez v. United States, 284 F.3d 281, 288 (1st Cir.2002).1 Outside of the medical malpractice context, the "factual basis" for an FTCA claim is "(1) the fact of injury and (2) the injury's causal connection with the government." Skwira, 344 F.3d at 77.

Based on the record before me, and treating the plaintiff's well-pleaded facts with the requisite level of indulgence, I conclude that it was not unreasonable for ...

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